Standing Committee A

[Derek Conway in the Chair]

Criminal Defence Service Bill [Lords]

Derek Conway: Good morning and happy new year. I remind the Committee that there is a money resolution in connection with the Bill. Copies are available in the room. I also remind hon. Members that adequate notice should be given of amendments. As a general rule, my fellow Chairman and I do not intend to call starred amendments, including any that might be reached during the afternoon sitting, which will be chaired by my colleague, Mr. Greg Pope.

Bridget Prentice: I beg to move,
That— 
(1) during proceedings on the Criminal Defence Service Bill [Lords] the Standing Committee shall (in addition to its first meeting at 10.30 am on Tuesday 10th January) meet— 
(a) at 4.00 pm on Tuesday 10th January; 
(b) at 9.00 am and 1.00 pm on Thursday 12th January; 
(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 pm on Thursday 12th January. 
I wish you a happy new year, Mr. Conway, and say what a delight it is to be serving under your chairmanship. You dealt with the programming sub-committee last night very effectively and informally. I hope that the Committee will follow in your footsteps in the course of today's debates.

Jonathan Djanogly: Good morning, Mr. Conway. Likewise, I look forward to serving under your chairmanship. The programming sub-committee yesterday went very well from our point of view. We are happy with the motion and will not oppose it.

David Heath: I, too, welcome you to the Committee, Mr. Conway, and wish you a happy new year. I hope that our proceedings will be commendably brief; I see no reason to extend them unnecessarily. Indeed, I would have been content with the Bill as it stands. However, the Government proved intransigent in one respect, which means that there will be a significant debate on at least one of the matters before us. Other than that, I hope that we can move to a speedy conclusion of our considerations.
Question put and agreed to.

Clause 1 - Grant of rights to representation

Bridget Prentice: I beg to move amendment No. 1, in clause 1, page 2, leave out line 23.
As the hon. Member for Somerton and Frome (Mr. Heath) has recognised, much of our debate will be on Government amendments Nos. 1 and 2, which could be said to go together. It may help the Committee if I explain the Government's position. 
The object of amendment No. 1 is to overturn an amendment passed in the House of Lords, because we do not feel that it would be helpful to have judicial oversight, in the way proposed in the other place, of what is essentially an administrative procedure. We accept that there has to be a right of appeal in cases in which a defendant believes that the interests of justice have not been served. As I stated on Second Reading, we make that clear in the supplement to the framework document, and I do not think that anybody would disagree. However, the Government strongly argue, as we have consistently argued, that should a defendant complain about a miscalculation or an error in the administration of a means test, an administrative review of the application would be more appropriate than an appeal. 
Concerns expressed in the other place led to the amendment to which I have referred but I believe that the were misplaced. Amendment Nos. 1 and 2 seek to reverse the position and to restore the Bill to its original state. We believe unequivocally that the applicant should have the opportunity to challenge a determination if he is found to be not financially eligible for criminal legal aid. We propose judicial review not as an alternative to appeal but as a further stage after review. The key question, therefore, whether the hearing should be conducted by the Legal Services Commission or whether there should be a full court appeal. We have consistently stated our view that the financial eligibility test is almost entirely a matter of fact, not of judgment. It is an administrative process, not a judicial one. As I stressed on Second Reading, that assessment is shared by senior members of the judiciary.

David Heath: Will the Minister confirm that she said what I think I heard her say—that it is almost entirely a matter of fact?

Bridget Prentice: Personally, I would say that it is entirely a matter of fact; I cannot foresee a situation in which the financial eligibility test would not be purely administrative.
The decisions that will need to be taken will not call for fine judgments on obscure or complex issues of law, so I see no need for the courts to be involved, as they should be left to focus on judicial matters. It is right, for example, that they should decide on appeal whether it would be in the interests of justice that a defendant should be legally represented. That would rightly fall within the ambit of the court. The court might also be asked to consider whether assault was likely to result in imprisonment if the defendant was convicted. 
The judiciary should clearly take a view on such matters, but it is not for the courts to decide on appeal whether the state should intervene to pay an individual's defence costs. Determining whether an applicant's declared income has been properly calculated is not the sort of task that should be dealt with other than administratively. That is why Government amendment No. 2 to clause 2(2) re-introduces a provision to allow for the review of such decisions. It will form part of proposed new paragraph 3B(4) on financial eligibility, which will be  inserted into schedule 3 to the Access to Justice Act 1999. 
The hon. Member for Somerton and Frome has argued that application of the means test could give rise to complex cases that would be more appropriately dealt with by appeal. On Second Reading, he referred to the problems of assessing joint incomes if there has been an estrangement or if the applicant has a new partner. I raise the subject now although I am sure that he will come back to it later in the debate because it allows me to ask some questions. 
Is the hon. Gentleman saying that the ''complex'' cases he talks of raise issues of fact or of law? If they remain issues of fact, however complex they might be, it would surely be suitable for the Legal Services Commission to review them, and they therefore should not be the subject of an appeal to the court. A case might raise a question of law or interpretation of the Access to Justice Act 1999 or the regulations, and a complaint on an error of law would be a proper ground for judicial review. Nevertheless, we believe that such cases will be so rare that it will be proper for them to be dealt with by judicial review, after internal review. They will not require an intermediate appeal to the court. 
I have gone into considerable detail in explaining the Government's reasoning for introducing a review process for applicants unhappy with determination of the means test. I hope that it is clearer why retention of the power in paragraph 4 of schedule 3 to the Access to Justice Act 1999 is so critical. The power allows cases to be prescribed in which an applicant cannot appeal against a decision to refuse representation or to withdraw a right to representation. Without that power in its current form, there would be a clear inconsistency with proposals to allow for a review of the means test. 
I stress that the power would never be used to implement regulations that might seek a wholesale ban on the right of appeal. However, it will allow us to guard against abuse of the system. For example, it is possible that some applicants might seek to abuse the system—for example, by submitting countless appeals against an unfavourable decision. That would be a gross misuse of the court's time and resources. Retention of the power will give us the means to tackle such abuse, and we therefore consider the amendment both prudent and essential. 
I suspect that this will be my longest speech today, so I conclude by saying that it is my belief that the appeal and review process proposed by the new scheme strikes the correct balance between a robust defence of an individual's rights and the need to ensure that court resources are not misused. I trust I can rely on the Committee's support for the Government's first and, indeed, the second amendment.

Jonathan Djanogly: I declare any interest that I might have as a practising solicitor.
This brief Bill—I use the word brief in the context of our position on Second Reading, where we made it clear that it will do little to alleviate the hard times that have befallen legal aid practitioners—will allow the power to grant rights for representations to be  transferred from the courts to the Legal Services Commission, introduce a means test for the granting of such funding and, where the test is met, advise for contribution orders based on means. 
Several amendments were made in the other place, and I pay tribute to their lordships for the work done on the Bill. The Conservative Opposition feel that access to justice is an important matter that requires full and serious consideration. Through the determined efforts of our noble Friends and others in the other place such detailed consideration has been possible. As the Minister said, today is not the time or place to go over every single argument that has already been made. 
We welcome the restoration by amendment in the other place of responsibility for legal aid matters to the Lord Chancellor, as we welcome the amendments made on appeals. I will emphasise that point later, but suffice it to say for the moment that we believe it important that the court should be able to hear appeals on the interests of justice tests as well as on the eligibility tests, and they should be able to consider such matters afresh. We were, therefore, somewhat disappointed with the Government's decision to overturn measured, considered and expert amendments supported by their noble lordships. I point out immediately that the Conservative party has long been in favour of many of the measures contained in the Bill, particularly the concept of means-testing for those who can afford it, which was abolished by the Government in 2001. 
We have problems with amendment No. 1 and with the Government's general position. This ground has, of course, been extensively covered by in the other place, where Lord Goodhart—

David Heath: Hear, hear.

Jonathan Djanogly: Hear, hear. Lord Goodhart succinctly expressed the context in which the paragraph in question changed and the amendment was passed:
''The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court. That is particularly so in a case such as this, where the Legal Services Commission has a conflict of interests, because it has the responsibility for keeping legal aid within budget and therefore arguably has interests which potentially conflict with those of applicants.''—[Official Report, House of Lords 17 October 2005; Vol. 674, c. 583.]
I agree with that position, which was strongly supported by my noble Friends. We oppose the amendment on the same grounds. 
As it stands, line 23 allows appeals in all cases and removes the power by regulation to remove the right of appeal. A total removal of the right of appeal on eligibility grounds cannot, we believe, be justified. We welcome the Government's acceptance of appeals relating to merits cases but we stress that there will always be cases in which exceptional circumstances require funding for people who fail to meet the basic eligibility criteria. The Government recognise that to some extent in their supplement to the framework document: 
''The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court.''
We therefore believe that reducing the decision to a purely administrative issue of the kind described in the Minister's opening remarks is not adequate. The Law Society supports our view and has stated that there must be a right of appeal to the magistrates court. It has written to me and, I imagine, to other members of the Committee, and we should keep it in mind that the Law Society represents the view of users at the coal face. Its position therefore deserves to be reviewed carefully, and I shall ask the Minister to address some of its comments. 
The Law Society believes that 
''the right of appeal must be to the magistrates' court. This will not only be quicker, but the magistrates will have a good understanding of the case and of whether or not the client should be represented. This would be more efficient than having an appeal to a separate body totally disconnected from the Court process. The appeal mechanism should not be tied strictly to the mathematical formula on which the means test is based, but must have the flexibility to be varied when the interests of justice require.''
It notes: 
''The Government proposes that the only two grounds on which a review may be requested are when there has been 'a material change in the defendant's circumstances', or when there has been 'a suspected miscalculation . . . or some other evidence of maladministration of the test''.
It believes that 
''there are likely to be many other circumstances in which a client of average means may be unable to pay for his/her representation, and should be afforded the opportunity to appeal to the court against a refusal of legal aid on the grounds that it would be in the interests of justice for legal aid to be granted.''
The Law Society accepts that 
''a detailed assessment of the clients' means in every case would be disproportionate,''
but states that that is why 
''the discretion of the court in appropriate circumstances is required.''
It goes on to say: 
''It is therefore crucial that in the interests of justice, there is a degree of flexibility built into the decision-making process that would ensure that those people who are genuinely unable to pay are not left without representation.''
It believes that 
''appeals against refusals to grant legal aid on the grounds of means must also be referred to the court, as in many cases there will more to consider than a simple miscalculation.''
I find those arguments compelling, and the Minister should address them. 
I think that I can foresee where the Liberals will come from on this issue, and I ask hon. Members to vote against the amendment.

David Heath: The hon. Member for Huntingdon (Mr. Djanogly) has covered some of the ground that I want to cover, including his approbation for the work of my noble Friend Lord Goodhart. My party is absolutely clear: we welcome the Government's change in  position, which incorporates the interests of justice test and the capacity for appeals in the interests of justice. That is absolutely right and a major step forward.
The remaining issue, therefore, is the eligibility test. As the Minister properly points out, it is based on an arithmetical calculation of the means available to the applicant. The applicant no longer faces a steep threshold, as might previously have been the case; instead, there is a taper, so the consequences of being in a marginal position as regards the eligibility test are not as drastic as they once were. However, there are circumstances in which the interpretation of a person's financial and legal status falls outside an administration function. That is the kernel of what was suggested when the amendment was introduced in another place. 
The Minister almost gave the game away when I picked her up for saying that these were almost always factual issues. Yes, they are almost always factual issues. I am quite prepared to concede some common ground. Where we are talking simply about arithmetic or adding up, there is no reason why that should not be under administrative review, but I hope that, in return, she will concede that there may be exceptional circumstances in which that is not the case. She says that such cases can be dealt with by judicial review, but that is too cumbersome a process and would not properly address the rights of the individual in those circumstances. I accept that it would be sufficient to pass the article 6 test, as Baroness Ashton of Upholland said in another place, but in the wider interests of justice for an individual caught up in the court process in this country, it would not pass what should be our test of whether such a person is properly catered for.

Jonathan Djanogly: In practice, the Minister's review said that the process is extremely cumbersome and expensive. It is unlikely that the average individual will be able to afford it in the first place.

David Heath: Precisely; this really is a Catch–22: one cannot afford to go to court because one has not been given legal aid, one objects to the decision to refuse legal aid and is told that the way to do that is to go to court—to buy oneself a lawyer. It is absurd to think that that would give individuals the opportunity to get what they need in those circumstances. I resist the Minister's argument that the Lords amendment needs to be defeated and should be expunged from the Bill.
In the spirit of the new year, I offer an olive branch, as I think that there is a way around this impasse. It would be perfectly proper for us to construct an alternative mechanism. Perhaps we can apply our minds to that before Report, if the Minister has her way, which I sincerely hope that she does not. We could devise a mechanism that allows someone who fails the eligibility test to appeal on the ground of the interests of justice when the case concerns a matter of law or the way in which the eligibility rules were interpreted, as opposed to whether the person has the means. That would prevent abuse of the system, through multiple appeals, about which the Minister is worried, and would apply a mechanism for avoiding the disturbing consequences for individuals who are  refused on the basis of eligibility when they do not have the funds to mount a proper defence to the charges on which they are indicted. That is my olive branch. It is worth applying our minds to whether there is an alternative way of achieving the same result, because we are not as far apart as we might pretend to be on this issue. 
In the absence of such an agreement, I maintain that there is a need for the amendment made in the other place and that the Minister is quite wrong to seek to remove it when she has no alternative and given that the consequences might be disastrous for access to justice within the judicial system of some people, albeit a small number.

Jeremy Wright: I, too, declare an interest as a non-practising barrister.
I want to put one, straightforward point to the Minister. A great deal of what has been said by my hon. Friend the Member for Huntingdon and, indeed, the hon. Member for Somerton and Frome, is extremely important to the amendment, which I, too, oppose, but the fundamental question that the Government must answer is what harm would be done if the amendment put by noble Friends and others in the other place were to remain. It seems to be commonly believed that the courts would deal with relatively few cases under the eligibility criteria. 
The courts appear to be well used to dealing with unmeritorious appeals; they deal with such appeals in many other areas and do so very effectively. It would not delay the process of justice substantially, if at all, if the courts were presented with appeals without merit under the eligibility criteria. 
If I am right that Ministers have formally argued that what we discussing is a simple and straightforward arithmetical exercise, which they certainly argued on Second Reading, surely the courts can also do it straightforwardly, which would not delay things at all. If that is right, no harm would be done by retaining the amendment made in the other place, but considerable harm could be done by removing it.

Bridget Prentice: I shall discuss the ''almost entirely'' comment first, and will then deal with some of the other points made, particularly that made by the hon. Member for Huntingdon about the Law Society's position.
Occasionally, the question is not how much money a person has but whether that money actually counts. I believe that the hon. Member for Somerset and Frome is really referring to marginal cases that involve estrangement, or difficulty in assessing who owns what and whether one would take into account the funds of a non-cohabiting spouse. There are established ways to deal with such cases, but some issues may occasionally have to be decided judicially, hence judicial review. Indeed, that is exactly what judicial review is for; it reviews administrative decisions. I cannot see why an intermediate appeal system needs to be put in place to allow that to happen.

David Heath: I am most grateful to the Minister, whom I will eventually train to say my constituency correctly. It is, in fact, Somerton and Frome, not Somerset and Frome.
I accept that what she has identified is one of the functions of judicial review, but surely it is cheaper, faster and better to put such matters into an appeal before the court, rather than to enter into a new and separate process through judicial review. If it is accepted that that will have to be done at some stage, we should surely, in the interests of justice, use the mechanism that the Bill provides to do the same thing in relation to eligibility.

Bridget Prentice: I apologise for mispronouncing the hon. Gentleman's constituency, a mistake made worse by the fact that I went through it at Christmas and thought very fondly of him as I did so. The Celts among us must learn this language for ourselves.
There must be a sensible balance in the use of court time, a point that refers to some extent to the one made by the hon. Member for Rugby and Kenilworth (Jeremy Wright), which is much easier to pronounce. We all agree that the vast majority of cases will be factual and fairly straightforward, and I accept that the alternative of judicial review is somewhat cumbersome in comparison, but we must balance the possibility of using a slightly more cumbersome method in very rare cases with the possibility of the pretty regular time wasting of factual appeals being brought before the courts. In the end, that would diminish the service of the courts for the vast majority of users in favour of a small minority. I should also point out that the courts may well already have dealt with such cases, but the fact that they have had to deal with administrative matters in the past is not necessarily a good reason for adding to what they do. Courts should really be about the judicial process, and they should make judicial, not administrative decisions.

Jeremy Wright: The Minister will know that a method that courts tend to use to discourage frivolous appeals such as those that she has described is the costs mechanism. Has she considered the implications of allowing the courts to impose costs on those who bring frivolous appeals of the kind that we are considering?

Bridget Prentice: I have not considered that in any detail; we have been talking about sensible balance, and I am happy to consider that it might be worth some attention. That brings me back to the point made by the Liberal Democrats: if there is a possibility of some form of compromise, I am happy to think about it. It may be possible later to table amendments for discussion.
Perhaps I should provide the Committee with some reassurance about people who might fall outwith the means test eligibility criteria. That is why we are providing for hardship cases. If the Legal Services Commission does not agree with the applicant on the matter of hardship, judicial review will be available, but we have made specific arrangements for those very unusual cases. The example that I gave on Second Reading was of someone who would fall outside the  eligibility criteria in straight financial terms, but who, because they perhaps looked after a very disabled child or had other, extra costs that would not apply to most other people, could argue a hardship case. The LSC could consider the matter on that basis. 
I think that all members of the Committee have received the Law Society briefing. First, there are two limbs to the proposed scheme. One is whether the applicant is eligible for state-funded representation. The other is whether it is in the interest of justice that a right of representation should be granted. I fear that the Law Society has confused those a little. The first limb is a purely factual test, which is best carried out by the qualified court staff who carry out the tests today, not the magistrates. We have had discussions about that with the magistrates too, and they are content with what we propose. 
At the moment, we propose to allow a review of the means test on one of two grounds: a material change in the defendant's circumstances or a suspected miscalculation. It seems that the Law Society believes that there are likely to be many other circumstances in which a client is unable to pay for representation. I cannot see what other such circumstances would not already be covered by the regulation that provides for exceptional funding on the grounds of hardship. 
It is incorrect to say that we have said we consider the internal review mechanism to be appropriate only in unusual circumstances, and that we do not expect it to be used widely. The phrase ''unusual circumstances'' appears in the supplement to the framework document in relation only to hardship provision, not the internal review mechanism. The Law Society appears to have confused the two. The hardship provision recognises that an applicant in unusual circumstances may fail the means test yet be genuinely unable to pay for a defence. It allows such applicants to apply for their circumstances to be given special consideration. 
The Law Society is also concerned that the criteria on which exceptional funding on the grounds of hardship would be granted will be restricted to particularly high outgoings and unusually expensive cases. However, the supplement to the framework document makes it clear that these are only two of the possible criteria, and that further ones will be included in regulations. 
The Law Society has again raised the issue of unusually high housing costs. I want to make it clear that actual housing costs will be deducted from the applicant's income when a decision is made on whether that applicant passes the means test, so unusually high housing costs will automatically be taken into account. 
I hope that that answers the issues raised by hon. Members. I believe that the amendment is sensible and gives the balance that the Government think appropriate for an essentially administrative function. 
Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 5.

Question accordingly agreed to.

Jonathan Djanogly: I beg to move amendment No. 4, in clause 1, page 2, line 33, at end add—
'(11) Notwithstanding powers conferred on the Legal Service Commission by this section, the Court will have a residual power to grant a representation order upon oral application to the Court.'. 
Now that Government amendment No. 1 has been passed, the amendment is somewhat more important. Two points must be stressed, one of principle and one of practice. 
By inserting this amendment, the principle of judicial determination would be given a residual platform rather than conferred exclusively upon the Legal Services Commission. Through the determined efforts of our noble Friends, the Bill provided for an appeal process that in some part satisfied the Human Rights Act 1998. The residual power for the courts to grant a representation order upon oral application would further safeguard compliance with the European convention. 
As a practical point, practitioners need the opportunity to apply in court orally for a grant of representation—for example, where a matter is urgent. That is in the interests of the court in avoiding unnecessary delays in the administrative process. Other practitioners have agreed that the idea is sensible in allowing administrative matters to be dealt with expeditiously, given that case management is critical in making the legal aid process more efficient, which is the ultimate intention of the Bill. 
We discussed administrative speed in the last debate, and I shall not repeat that discussion. The point is that exceptional circumstances may arise where it would be in the interests of justice to enable the court to grant legal aid on oral application, rather than by the written court staff route.

David Heath: I support the views of the hon. Member for Huntingdon. I can foresee situations in which the circumstances of the defendant may change or a matter may arise during court proceedings that necessitates representation in the interests of justice, or where the court is not satisfied that the defendant is able to represent himself or herself adequately to allow justice to be done. It would seem absurd for that matter to be referred back to the Legal Services Commission rather than dealt with expeditiously by the court itself. The residual power therefore seems appropriate. It would be used only in exceptional circumstances, but nevertheless it would prevent unnecessary delay and improve the efficiency and expedition of court proceedings.

Bridget Prentice: Unfortunately, I feel unable to accept the amendment because of the Bill's two key objectives: to transfer the power to grant representation from the courts to the Legal Services Commission and to introduce a compulsory means test element that must be satisfied before any grant of legal aid can be made.
The transfer of the power from the courts to the LSC will help to achieve greater consistency in granting representation as well as ensure that the commission achieves greater control over criminal legal aid expenditure. If the amendment were passed and the courts given a residual power to grant representation, we would threaten to undermine those objectives. A residual power might even be open to abuse by applicants who want to circumvent the means test. For example, a defendant might calculate that he is better off deferring an application for representation until he has been before the court. At that late stage, he might consider that the court would be reluctant to delay proceedings by ordering a means assessment to be carried out, even though in practice it might take only a few minutes. I think that the amendment would undermine the very point that the Government made in our earlier amendment.

David Heath: It would be a pretty naive judge and court that could not see through such a transparent device.

Bridget Prentice: We would like to think that that would be the case, but anecdotal evidence suggests that it is not always so and that it is quite possible for a court under pressure to move a case on to feel that it would be prepared to grant legal aid in order to ensure that a person was properly represented.
That leads me to another reason why I feel obliged to resist the amendment. Handing decision making to the LSC will ensure consistency across the country, and it will also enable us to record that consistency and ensure that we have evidence of the way the system is working. I feel unable to support the amendment, and I ask the Committee to resist it.

Jonathan Djanogly: I do not think that for practical purposes we are talking about circumvention, which is what the Minister suggested. I was suggesting a practical application of the rules in real-life situations—matters can just happen. The amendment would make it easier for trials to proceed without delay, but in the context of what she said and the passing of Government amendment No. 1, we will have to take another look at the issue and come back to it on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 1, as amended, ordered to stand part of the Bill.

Clause 2 - Rights to representation: financial eligibility

Bridget Prentice: I beg to move Government amendment No. 2, in clause 2, page 3, line 16, at end insert— 
'(ba) provision for the review of such decisions;'. 
We are proceeding swiftly, and I can be briefer still because this amendment goes hand in hand with our previous one. It sits entirely logically with Government amendment No. which retains the power in paragraph 4 of schedule 3 of the Access to Justice Act 1999, because both amendments concern the appeals review mechanism. 
I have outlined in detail why the Government seek to introduce the amendments, and I do not propose to go over that ground again. As I stressed, our firm position is that where a defendant alleges miscalculation or error in the administration of the means test, a review of the application and not a full judicial appeal is the appropriate mechanism. In that respect, the amendment seeks simply to restore our original stated policy. I commend it to the Committee.

Jonathan Djanogly: Likewise, the Conservatives have set out our position in respect of Government amendment No. 1. To the extent that the amendments are tied together, I do not intend to pursue that position further at this stage.

David Heath: The Minister knows what the Liberal Democrats think of the provision: we do not think that it is the right way forward. However, it would be perverse to argue against the amendment, because in its absence there would be no review. Administrative review is better than no review at all, so she must have the amendment.
Amendment agreed to.

Jonathan Djanogly: I beg to move amendment No. 5, in clause 2, page 3, line 24, leave out 'may' and insert 'shall'.
We think it important to have an overriding interests of justice test, as agreed by our noble Friends in the other place, to ensure that no one is excluded from legal aid when the interests of justice require that they receive it. The interests of justice test is a requirement of article 6 of the European convention on human rights, which states: 
''Everyone charged with a criminal offence''
has the right, 
''if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require''.
When a person does not satisfy the means test, it is difficult to see that the interests of justice would require him to receive legal aid, but it is easy to see that a rigid means test such as the one presupposed by the Government could deny legal aid when the interests of justice require that it be given. We should be interested to hear the Government's opinion on whether, in order to comply with article 6, it is necessary to amend the Bill to ensure that we deal with regulations not allowing for an override of the eligibility limits where the interests of justice require it, which may be defective and invalid. Any override must be provided for in the Bill and not merely possible through an interpretation of the Act that the Bill will become. 
As the noble Lord Goodhart stated: 
''Circumstances will vary widely and there is a real possibility that people who on the face of it have quite substantial incomes but who also have considerable outgoings, not all of which are recognised by the regulations, would in practice be unable to obtain legal aid when they could not afford to pay for representation out of their own income.''—[Official Report, House of Lords 28 June 2005; Vol. 673, c. GC14.]
On that basis, the relevant provision in clause 2 should therefore state that regulations ''shall'' and not ''may'' 
''prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice''.
We feel that the issue is important, and we should be grateful for the Government's comments.

David Heath: I seem to spend a large part of my life debating amendments replacing the word ''may'' with the word ''shall'' or ''shall'' with ''may.'' It is a hardy perennial.
I shall be satisfied if the Minister makes it clear that it is the Government's intention to introduce regulations in the form implied by the Bill. I think that that is their intention, and it is consonant with what she said earlier. This might be the appropriate moment to address the compromise that I suggested earlier. If those regulations were also to prescribe circumstances of genuine disagreement over the eligibility terms of a particular financial arrangement either in law or in determining the ownership of assets, and if the matter could properly be considered under those regulations, I think that that would deal with our grave concern about the amendment passed earlier by the Committee. I therefore ask the Minister carefully to consider that proposition.

Bridget Prentice: First, may I say to the hon. Member for Somerset and Frome—

David Heath: Somerton.

Bridget Prentice: Somerton and Frome; I am sorry. I will certainly consider whether what the hon. Gentleman suggests is the appropriate way to make that kind of compromise, if compromise is possible.
If amendment No. 5 were accepted, Ministers would be required to impose on the courts a list of circumstances in which the interests of justice test would automatically be passed. I am surprised that the Opposition want to give that kind of power to Ministers, because in general they prefer Ministers to have less power rather than having more conferred upon us. 
The point of the interests of justice test is that it should be flexible, so that it can be applied in all cases. Courts are used to applying the test. In practice, they use a commonly understood set of criteria, which seems to be working reasonably well and we do not feel any need to change that. The idea that Ministers should legislate to constrain the court's power to determine whether the interests of justice test is met does not sit easily with the way in which we want the Bill to proceed. The courts have a long history of applying the interests of justice test; they do it pretty well by all accounts and I see no reason why Ministers should intervene. 
For example, we could prescribe certain cases, such as murder. However, it is so obvious that the courts would see that that would automatically satisfy an  interests of justice test that it is difficult to see what benefit our doing so would bring. I therefore ask the hon. Member for Huntingdon to withdraw the amendment on the basis that it is not necessary in the present circumstances.

Jonathan Djanogly: On the basis of the Minister's representations of her views on the interests of justice tests, I do not currently wish to pursue the point further, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause, as amended, stand part of the Bill.

Jonathan Djanogly: One of the principal motivations behind the Bill concerned the rising cost of criminal legal aid and the funding crisis that has engulfed the criminal defence service. One reason for that has been high-cost cases, and another bad case management. As a probing amendment, we tabled a new clause that would have limited the amount of money to be spent on high-cost cases, to ensure better and more efficient case management of all cases, particularly so-called high-cost cases. I appreciate that that new clause was not selected, for all the best reasons, I am sure.
We appreciate what the Law Society said in its parliamentary briefing on its opposition to limiting defence costs, noting that if that were considered, prosecution costs should likewise be limited in order to preserve parity. However, we contend that the extremes of bureaucracy involved in the legal aid process must continue to be broken down. Where savings measures are introduced, the savings should be real. It seems to us that the Government give in to the ever-present pressure to come up with short-term reforms designed to control the budget, when what it needed is a longer-term strategy. In addition, something should be done immediately to reduce the amount spent on high-cost cases. 
The following figures represent the crux of the problem that the Government are simply not addressing. The cost of the half dozen most expensive criminal legal aid cases in 2003 was no less than 25 per cent. of the total criminal legal aid budget. As my noble friend Lord Kingsland said in relation to means testing: 
''I hazard that however much money it will save, it will save nothing like the amount of money that high cost cases cost the criminal legal aid system.''—[Official Report, House of Lords 13 June 2005; Vol. 672, c. 1083.]
We recognise that legal aid costs in general have increased. However, the budgets of the lower courts are generally under control. Should not, therefore, the true target for cost cutting be high-cost cases? Why do the Government refuse to address the issue, when those cases are clearly such a drain on the resources of the Criminal Defence Service? Without suitable contemplation of the figures relating to high-cost cases, the Bill cannot be the success that it deserves to be. 
The problem is not that the Government are spending too little, but that cases need to be managed more efficiently. We need clarity about what legal aid is spent on. To manage cases more  efficiently, the Crown Prosecution Service and the judges need to deal with management issues at an early stage in order to avoid bigger problems and spiralling costs later. However, the Government seem unable to get to grips with the problem, and we believe that that constitutes a significant failure on the part of the Department for Constitutional Affairs. It must recognise that the reintroduction of means testing will not, in itself, solve the problem or make significant savings in relative terms. 
There is also concern in relation to the perverse incentive in cases that might be tried either way for defendants to choose the Crown Court route, which might put them in a more favourable position with regard to legal aid. As that would serve only to increase costs, we believe that it needs to be reviewed further. We continue to have concerns about a Bill that seeks to translate the magistrates court regime in some modified form to Crown Court simply by way of delegated legislation, as is loosely set out in the supplement to the framework document. Separate regimes for the magistrates courts and the Crown Courts should be introduced simultaneously through primary legislation in order to avoid both uncertainty in the drafting of regulations and the perverse incentive that I have just mentioned. That outweighs the benefit of first appraising the magistrates scheme and then implementing a phased roll-out of the Crown Court scheme outlined in the supplement to the framework document. 
We have noted the Law Society's views in that respect, but we should like to probe the Government on the matter. The regulations for the Crown Court system have yet not been presented in full and, given our concerns, we feel that it would be appropriate for the Government to provide more than indicative details of the scheme at this stage. For example, is it proposed that the eligibility thresholds for the Crown Court means test be the same as the proposed test for the magistrates court even though there is clearly a discrepancy between the costs of the two types of case? Has there been any assessment of the average cost of a privately funded Crown Court case? That might assist in determining the means test for Crown Court cases. What assessments have the Government made of the likely increase in the number of unrepresented defendants, of the costs to the police, prosecution and courts of dealing with that, and of the impact on victims who are cross-examined by the defendants in person? The Government will no doubt argue that all those matters are being examined by Lord Carter's review of legal aid and that we should await the outcome of that. We disagree. The Carter review, valuable as its conclusions are sure to be, should not preclude action in certain areas now. 
It is evident that there needs to be far greater emphasis on reducing expenditure in high-cost cases, and it is obvious that we need to pursue initiatives aimed at achieving better value for money across the criminal justice system, such as more effective trial management. Irrespective of Carter, the Government should aim to make urgent progress in those areas—they are important matters for the opposition parties. The Bill must signify only the very beginning of the  reform of our legal aid system, which this Government have neglected to the point of crisis.

Bridget Prentice: Let me respond first on Crown Court cases. Eligibility is not about excluding people from legal aid; it is about bringing people into a contribution regime.
Secondly, the hon. Gentleman makes a great deal of high-cost cases, but let me assure him that no one is more aware of high costs than we in the Department. That is why we have taken action to deal with high-cost cases before Lord Carter's review and we shall continue to make savings. We have also taken action to ensure the proper management of cases in the courts, and the judiciary has been very positive and keen to be involved in ensuring that we have much better case management than in the past. 
Something is being done, and the high-cost case contract unit of the Legal Services Commission is proving quite successful at controlling costs. It is making savings of about £35 million—that represents about 10 per cent. of cases—which is not an insignificant sum. I therefore agree with the hon. Gentleman in principle about taking control of high-cost cases but would have appreciated it if he had recognised that the Department has already set in train several ways of dealing with the issue. 
The hon. Gentleman also says that we should not wait for Lord Carter, but Lord Carter will publish his review within weeks. The idea that we should suddenly do something two or possibly three weeks before Lord Carter publishes the review that we asked him to undertake is, quite frankly, daft. It would send nothing like the right messages to the judiciary, the legal profession or anyone else, particularly Lord Carter.

Derek Conway: Order. I notice that the hon. Member for Huntingdon is about to intervene. Before he does so, I should say that I have allowed the debate to go reasonably wide because our proceedings have been well tempered and are not destined to be overlong. As the hon. Gentleman knows, however, there are very good reasons why new clause 1 was not selected, and although I have allowed the Minister to respond in kind, it would be wrong for the debate to stray much further beyond the scope of clause 2. I am not sure what the hon. Gentleman intends to say, but I am sure that he will not tempt the Minister to go beyond the scope of the clause; indeed, I would not allow him to.

Jonathan Djanogly: Thank you, Mr. Conway, and I appreciate the leeway that you have allowed us. This is an important and, I believe, relevant issue. If it is daft not to wait for Lord Carter, why is the Committee being held today, rather than in three weeks' time?

Bridget Prentice: I am quite pleased that it is being held now. The Bill was actually meant to have been taken before the general election, but it fell by the wayside. Indeed, let me say in passing—I shall move on very swiftly, Mr. Conway—that we have benefited from the fact that it fell by the wayside, because the Bill before us is a much improved version of the one that was available before. 
I should also correct something that I said—just to make things absolutely clear. The £35 million savings are savings from the Bill and are quite separate from savings that are already being made under the high-cost case scheme. 
On clause 2, it is essential for rights to representation to be granted only where the individual satisfies financial eligibility criteria—that is the other key feature of the Bill, as opposed to the one that we discussed under clause 1. Clause 2 is required to ensure that tax-funded legal aid is restricted to those who genuinely need it and is essential to prevent criminal legal aid from being available to defendants who do not require it. 
Mr. Heath rose—

Bridget Prentice: I knew that that would inspire an intervention from the hon. Gentleman.

David Heath: I do not want to delay the Minister, but she should be very cautious about saying that something is essential when, only a few years ago, it was essential that quite the reverse should apply.

Bridget Prentice: It is important that I address that. As I said in response to an intervention on that point on Second Reading, the Government did away with all criteria for legal aid about five years ago and made legal aid available to everyone in criminal cases. It must be said that we were not aware of how legal aid would be taken up. We have reviewed the matter and have listened to what people had to say. Clearly, it is right to reflect on what has happened and to decide that some form of means-testing is appropriate.
I have no problem with saying that we considered the matter and that abolishing the criteria did not turn out as we wanted it to, so we have advanced this proposal because we believe that it is a better way to deal with things. I have no problem with having thought about it, listening to what people have said and accepting change where change is necessary. 
Many hon. Members have written to me about the case of the footballer El-Hadji Diouf, who was on loan from Liverpool to Bolton. I am reluctant to go too far into the football situation, because I know that my hon. Friend the Member for Ealing, North (Stephen Pound) will want to mention Fulham at some point.

Stephen Pound: Will the Minister give way? [Laughter.]

Bridget Prentice: Not at this point.
El-Hadji Diouf was on loan from Liverpool to Bolton when he spat in the face of his opponent, Arjan de Zeeuw. I can pronounce those names more easily that I can the constituency of the hon. Member for Somerton and Frome, but I am getting there. El-Hadji Diouf was fined two weeks' wages—a total of £80,000, as he was paid £40,000 a week—yet he was eligible for legal aid. That upset a great many people who would not be eligible for legal aid in civil cases. That example illustrates why the Bill is so timely. 
Under clause 2, means information will be collected from defendants at the earliest opportunity after they  enter the criminal justice system on a consolidated application form covering both the early advice and assistance scheme and the granting of representation. In response to comments made on Second Reading, I want to make it clear that the information should be collected when the defendant is charged, as that is the most appropriate time to collect it. 
A number of limited eligibility allowances will be introduced to ensure that the scheme is fair and sensitive to individual circumstances and reflects capacity to pay. Defendants will be able to apply for legal aid under an extended advice and assistance scheme up to and including the first hearing, when a means-tested representation order comes into force. Eligibility for the extended advice and assistance scheme will be determined on merit alone, and applicants will not be tested for means at that point. 
Question put and agreed to. 
Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 - Rights to representation: contribution orders

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: I have two brief points to make. What assessment, if any, have the Government made of the use of the recovery of defence costs orders? Have they proved to be effective, and if not, why, and how can the matter be addressed? As the Law Society pointed out, the advantage of the recovery of defence costs orders, is that they are made at the end of a case when the overall picture is much clearer.
Secondly, do the Government propose to reimburse acquitted defendants the costs of their defence? Again, as the Law Society points out, there is a discrepancy between reimbursement of acquitted defendants at private rates and payment at legal aid rates. Of course, the implication is that the Crown could end up paying more to defence solicitors at their private rates than it would have done at legal aid rates. In turn, could addressing the problem be disproportionate, undermine the cost-cutting essence of the Bill and breach the Human Rights Act? To what extent have the Government assessed the issue?

Bridget Prentice: Clause 3 is necessary for the making of contribution orders where the financial eligibility criteria are satisfied. It is essential to protect defendants from having to pay the full funding of their cases when costs rise beyond what it would be reasonable to expect people to be able to afford to pay. Cases can end up costing tens of thousands of pounds, and the clause will allow defendants in such cases to be protected from having to meet the full cost. It is also required to enable the future Crown court scheme as well as for dealing with unusually high-cost cases.
We believe that it is prudent for the magistrates courts scheme to be allowed time to bed down before the Crown court scheme is rolled out. A phased roll-out will provide us with the opportunity to learn any lessons that arise from the scheme's implementation in  the magistrates courts. In response to the hon. Gentleman's question on the recovery of defence cost orders, the capital contribution takes place at the end of the case. Many defendants will have no or little capital at the time of the charge, but may have income from employment that, if convicted, they could lose. There will be means-testing plus the recovery of defence cost orders, as they address different areas. I should make it clear that when a person is acquitted there will be provision for reimbursement of their costs. On that basis, I ask the Committee to support clause 3. 
Question put and agreed to. 
Clause 3 ordered to stand part of the Bill.

Clause 4 - Consequential amendments

David Heath: I rise to make the most pedantic and pointless intervention that I can. It is purely about the felicity of the drafting. Clause 4(2)(b) refers to ''subsection (4A) of that section''. One assumes that the section implied is section 23 of the Children and Young Persons Act 1969. If that is the case, it would be slightly better and clearer drafting if clause 4(2)(a) were to read ''subsection 5A of section 23 of the Children and Young Persons Act'' so that there could be no possibility of any confusion. That is, as I say, the most pedantic point but I prefer consistency in drafting, and later in the same paragraph we phrase matters in an analogous way. I commend the point to the Minister and those who drafted the Bill.

Bridget Prentice: I am very happy to take the hon. Gentleman's pedantry on board. I agree with him absolutely both because he is right about the way in which clause 4(2)(a) is set out and because of consistency. If we are to be consistent, we might as well be consistent in a proper, correct way rather than a bad way.
Clause 4 deals with consequential amendments to other legislation required as a result of the Bill. I commend it to the Committee. 
Question put and agreed to. 
Clause 4 ordered to stand part of the Bill.

Clause 5 - Short title, commencement and extent

Bridget Prentice: I beg to move amendment No. 3, in clause 5, page 6, line 1, leave out subsection (5).
The amendment is the standard removal of the privilege amendment made in the House of Lords. 
Amendment agreed to. 
Clause 5, as amended, ordered to stand part of the Bill. 
Question proposed, That the Chairman do report the Bill, as amended, to the House.

Bridget Prentice: This is the first time I have taken a Bill through Committee in my present position, as opposed to that held by my hon. Friend the Member for Cardiff, West (Kevin Brennan), who has been  magnificent in ensuring that the Committee completed its work in record time. I thank you, Mr. Conway, for the way you have conducted the Committee and yesterday's proceedings; as I said earlier, you allowed a certain informality and a wide-ranging debate, albeit in a fairly short time. I also want to thank your fellow Chairman, who, sadly, will not have the benefit of listening to our deliberations.
I also thank, on the Committee's behalf, the Committee's exceptional officials, who have ensured that we have been properly briefed. I know that they have been available to give advice and help to the Opposition where necessary. I thank, too, Opposition Members for the way in which they have conducted the debate on a Bill that will serve criminal justice well, and my hon. Friends, who have been dutiful as always and have contributed where necessary. 
I am particularly grateful to my hon. Friend the Member for Cardiff, West for ensuring that the debate and the Bill have been organised appropriately. As I said earlier, the Bill fell by the wayside before the general election, and that has given us the opportunity to improve it. I am pleased to have been part of the Committee.

Jonathan Djanogly: I agree with much of what the Minister has said. This has been, if not the shortest, one of the shortest Standing Committees on which I have served. I congratulate the Minister on completing her first one; they are not all so easy, as she will know. I thank you, Mr. Conway, the officials, the police and the Doorkeeper.
The Minister spoke about the conclusion of the Committee's business. Although we agree with the thrust of the Bill there are one or two outstanding issues to be dealt with later.

David Heath: The normal Oscar ceremony procedure for this Bill is necessarily rather attenuated by such a short Committee stage, but I am enormously grateful to you and members of the Committee.
The bizarre thing, of course, is that both criminal and civil legal aid raise huge issues that we could not deal with properly in the context of a Bill Committee. We do not oppose the Bill, but we have serious problems with the way legal aid is moving. To me and many people it is an essential element of the welfare state that we are allowing to wither, and that worries us enormously. 
There is only one issue to which we must return on Report, but I believe that there are ways to come to an accommodation on that and hope that between now and Report we shall be able to produce a form of words that will satisfy us and prevent a ping-pong between here and another place. That would be unnecessary in the context of such a Bill, and I urge the Minister to take the matter seriously and do what is required to reach the accord that is available. 
I thank you for your chairmanship, Mr. Conway, and hope that every Bill on which we serve in future will be as brief and as well tempered.

Derek Conway: I am grateful for those remarks. I fear that my co-Chairman, Greg Pope, who was to  chair a Committee for the first time this afternoon, may never forgive his colleagues for being so efficient. 
Question put and agreed to. 
Bill, as amended, to be reported. 
Committee rose at ten minutes to Twelve o'clock.